How does the U.S. state where an EB-5 investment is made affect same-sex immigration?

I am in a same-sex relationship, but same-sex marriages are not legal in my home country. I also know that they are not legal in all U.S. states. If I apply for an EB-5 visa, will my same-sex partner be able to immigrate with me? If they are able to immigrate, will the U.S. state where I make my EB-5 investment affect my partner’s visa eligibility?

Answers

If you are married in a state that recognizes same-sex marriages, then the USCIS will recognize your marriage. You need to document that you are legally married in such a state, and that the marriage is bona fide (you are living together and the marriage was not entered into solely for immigration purposes). The state where you make the EB-5 investment does not have to be a state that recognizes same-sex marriages. You should consult with an experienced immigration attorney who can advise you on this matter.

It does not matter in which state your intended EB-5 investment is located. Unless it is a direct investment model, you may reside in any state in the United States regardless of a location of a the regional center project. However, for your partner to be able to immigrate to the United States with you as a derivative beneficiary of your I-526 petition you must be legally married. Marriage must either be legally performed in your home country or in a U.S. state that does recognize same-sex marriage. The United States presently recognizes same-sex marriage for purposes of federal immigration benefits, but it must be a legal marriage based on your home country’s laws or a U.S. state where same-sex marriage is recognized to obtain this immigration benefit for your partner. Please consult an experienced immigration attorney to further discuss the details of your case.

As long as you are married in a place that recognizes same-sex relationships it does not matter where you live, and your partner will get derivative immigrant visa benefits if married before you acquire your permanent residency.

Philip H Teplen

Immigration Attorney

Answered onAugust 13, 2014

If you marry in a state or nation that allows for same-sex marriage then the United States will honor it.

John J Downey

Immigration Attorney

Answered onAugust 12, 2014

You should check with a U.S. attorney familiar with family law to determine which states allow the marriage.

If you marry in a U.S. state that recognizes same-sex marriage then you both can apply for a conditional permanent residency visa on the basis of an EB-5 investment. However, if you marry in your home country that does not authorize same-sex marriage then both of you may have issues applying for U.S. residency.

You will need to have a marriage that is recognized as legal in your home country. This is still a volatile area of law, but it seems unlikely that the state in which you find a project to invest in will have an effect. There is no requirement for you to live in the same state as your investment project.

While the United States will honor the same-sex marriage that is legally recognized as if it were a more traditional marriage, if the marriage is not legally recognized in your country, you may not be able to show that you have a marriage. Thus, your partner should be given the immigration benefit as your spouse. Where the investment is made does not make any difference as this is a consular processing issue for the immigrant visa application, where you submit the marriage certificate, birth certificates, etc., to obtain the immigrant visa after the I-526 approval.

U.S. immigration law recognizes a marriage as legal if it is legally recognized per the laws of the state/country where the marriage took place; therefore, if your home country does not recognize same-sex marriage, but you get married in a country that does recognize same-sex marriage, USCIS will also recognize that marriage. In order for your spouse/partner to receive status as a dependent, your marriage must be recognized as legally valid. Your partner can enter the United States as your spouse only if you are married at the time of filing and he is seeking derivative status through you. If you are already married then the state in which you choose to invest your funds will not affect your partner''s visa eligibility, although it will likely affect other life decisions (i.e. joint health insurance, survivor benefits etc.) if you are in a U.S. state that does not recognize same-sex marriages.

The only concern for recognition of the marriage is its validity in the state where the marriage took place. Here is the information from the USCIS web site: "Q3: My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse? A3: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage. The domicile states laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid."

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